A Defeat on Offshore Drilling Extends the Trump Administration's Losing Streak in Court
Originally published by The Conversation.
The Trump administration's push to boost fossil fuel extraction has received a major setback. On March 29, Judge Sharon Gleason of the U.S. District Court for Alaska ruled invalid Trump's order lifting a ban on oil and gas drilling in much of the the Arctic Ocean and along parts of the North Atlantic coast. Gleason held that the relevant law – the 1953 Outer Continental Shelf Lands Act – authorizes presidents to withdraw offshore lands from use for energy development, but not to reverse such decisions by past administrations.
If this ruling is upheld on appeal, it would bolster lawsuits contesting another controversial action by President Trump: Removing some 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments in Utah, which were created by Presidents Obama and Clinton respectively under the Antiquities Act of 1906.
As scholars of environmental and natural resources law, we believe that in both instances, the Trump administration has misconstrued statutes as affording it powers that Congress never gave to presidents.
Conserving underwater resources
Congress passed the Outer Continental Shelf Lands Act to establish U.S. jurisdiction over this region, which begins three miles offshore and extends for several hundred nautical miles. The law recognizes that the outer continental shelf "is a vital national resource reserve … which should be made
Oversight, Executive Orders, and the Rule of Law
This post is based on a recent article published in the University of Missouri—Kansas City Law Review. Congressional oversight and the public's impeachment discussion tend to focus on deep dark secrets: Did President Trump conspire with the Russians? Did he cheat on his taxes? Did he commit other crimes before becoming president? The House Committee on Oversight and Reform (or the Judiciary Committee), however, should also focus on a more fundamental and less hidden problem: Trump has systematically sought to
New on 'Connect the Dots': The Frontline Communities Fighting Back Against Polluting Pipelines
For affected indigenous communities in the United States and Canada, new oil and gas pipelines snaking across their lands represent a new kind of attack. Dirty, polluting, dangerous, and built without the communities' consent, these pipelines are the inevitable outcome of North America's hydraulic fracturing and tar sands oil "revolutions" that have played out in recent decades. These indigenous frontline communities must bear the disproportionate costs brought about by developed nations' continued addiction to fossil fuels, all without seeing most
Top Ten Regulatory Policy Stories to Look Out for in 2019 (IMHO)
As I documented in my most recent post, 2018 was an active year for regulatory policy, bringing several notable controversies, milestones, and developments. For those who follow this area, 2019 promises to be just as lively and momentous. Indeed, it appears that the dynamics that spurred much of the regulatory policy-related action in 2018 – namely, the high priority that the Trump administration has placed on corrupting our system of regulatory safeguards, and the accompanying political polarization around the issue
Federalism 'Collisions' in Energy Policy
Originally published in The Regulatory Review. Reprinted with permission. Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are
Message for State Climate Policy: Lead with a Vision, Not a Tax
Washington State has continued to try – unsuccessfully – to pass a carbon tax, with the latest effort, Initiative 1631, losing on November 6. The state's effort to control carbon is laudable, but Washington and other states contemplating how to fill the growing federal climate policy void should consider leading with a vision for a clean energy transition rather than a politically challenging "price." An overarching vision for a low-carbon future and a public decision-making process for achieving that future
Federal Court Deals Major Blow to Keystone XL Pipeline
Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline. The case centered on the Trump administration’s 2017 decision to reverse the State Department’s initial rejection of the pipeline project, issued in 2015. The court noted that the environmental impact statement prepared
Argument Analysis: Justices Express Skepticism over Using Legislative Motive in Pre-emption Analysis
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The Supreme Court heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all
Argument Preview: Justices May Consider Role of Legislative Motive in Pre-emption Analysis
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Hammond's follow-up analysis of the oral arguments in this case. On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the
States Rally Around Renewables
Cross-posted from Legal Planet. The Center for Law, Energy, and the Environment published a survey of state energy policies through 2017. The trend toward renewables has continued in 2018. Even after nearly two years of the Trump presidency, states haven't given up. Instead, they're moving forward aggressively. If anything, Trump seems to have stimulated these states to try even harder. Here's a quick rundown of what's happened so far in 2018: California mandated that all new homes have solar energy and
Modernizing the Grid
Cross-posted from Legal Planet. In my last post, I talked about how Obama's Clean Power plan was the right response to a changing grid. The grid is in the process of changing even more. It was designed for some relatively straightforward tasks. The main power plants, mostly burning coal (but sometimes natural gas or nuclear energy), ran day and night. They were supplemented by other power plants when needed to meet load (customer demand). All the power flowed from these
Jumping the Fence Line, Embracing the Grid
Cross-posted from Legal Planet. Click here for the follow-up post. If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. That is, according to the Trump folks, EPA can impose measures on each plant, but not measures that go beyond the fence line
'National Security' Coal Bailout Collapses
Cross-posted from LegalPlanet. In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of
The EPA's Affordable Clean Energy (ACE) Rule: Putting Money on ACE Is a Bad Bet -- Part II
This post is the second of a pair on the Trump administration's so-called "Affordable Clean Energy" (ACE) rule. You can read the first post here on CPRBlog. Industry Trends In short, energy projections demonstrate a clear trend for clean energy and away from fossil fuels. These trends, directly and negatively, affect traditional electric utilities. About the time that rooftop solar financing was being consolidated by third parties such as SolarCity and Sunrun, utilities began to worry about a "death spiral."
The EPA's Affordable Clean Energy (ACE) Rule: Putting Money on ACE Is a Bad Bet -- Part I
This post is the first of a pair on the Trump administration's so-called "Affordable Clean Energy" (ACE) rule. You can read the second post here on CPRBlog. On August 21, the Environmental Protection Agency (EPA) proposed the Affordable Clean Energy (ACE) rule as a substitute for the Obama administration's Clean Power Plan (CPP). The CPP had been stayed from going into effect by the U.S. Supreme Court, and the purpose of the substitute rule is to establish greenhouse gas emissions
From Surviving to Thriving -- Energy Infrastructure: Beyond Repair
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters. We have seen the pictures before. A man and his dog, both wet and disheveled, gliding down the middle of a residential street in a rowboat past downed power lines. As they drift, they pass the tops of cars parked at the curb, immobile. As they drift further, they see a woman and child standing on the roof
Trump's Proposal to Replace the Clean Power Plan Endangers Public Health and the World's Climate
by Joel Mintz | August 30, 2018
This story was originally published by The Revelator. In his first 19 months in office, Donald Trump has repeatedly defied established presidential norms — so flagrantly that it almost obscures the many ways he's changed national policies for the worse. But despite all the scandals and mean-spirited tweets, it's likely that his most enduring impact will be his administration's systematic, reckless dismantling of ongoing efforts to curtail human-caused climate change. The miseries of global climate disruption are already upon us.
The 'Affordable Clean Energy' Rule and Environmental Justice
For disadvantaged communities, the so-called Affordable Clean Energy Rule (ACE) falls far short of the protections and opportunities included in the Clean Power Plan, the Obama administration rule that the Trump EPA is now attempting to repeal and replace. One of the Clean Power Plan's (CPP) essential features was its recognition that the electricity sector operates as an interconnected system. Because of its system-wide approach, the CPP could achieve significant reductions of greenhouse gases and other pollutants by encouraging utilities